Service Addendum. refer to the associated AvePoint software user guide located at

Transcription

1 Service Addendum Non-SOW Service Types: SOW Service Types: Modules and Dates: Location: Advanced Quick Start Service, Essentials Quick Start Service, Installation, Configuration, Training, Technical Account Management (TAM) Services and/or on-site Services without deliverables, as specified in the relevant Sales Quote All other service engagements; in particular Migration Services, SharePoint Deployment, SharePoint Consulting and Custom Development As agreed upon between the parties on the relevant sales quote issued by AvePoint ( Sales Quote ) Remote; on-site Services only if specified in the relevant Sales Quote Applicability The terms of this Service Addendum shall be applicable for all services performed by AvePoint, Inc. ( AvePoint ) for the customer identified on the relevant Sales Quote ( Customer ) unless expressly agreed upon otherwise in writing between the parties. For TAM Services, the AvePoint TAM Service Description Document (SDD) applies additionally to further detail the services. No Customer terms and conditions shall be applicable. AvePoint may require Customer to enter into a statement of work or other written agreement ( SOW ) that refers to or incorporates this Service Addendum. This requirement to conclude an SOW applies in particular to engagements with SOW Service Types as defined above. If AvePoint and Customer have concluded an SOW, the terms and conditions of this Service Addendum shall apply to the SOW in full as if the SOW and the Service Addendum were one document. AvePoint shall have no obligation to provide SOW Service Types unless and until AvePoint and Customer have executed an SOW in writing. Service Locations and Times Services will be performed during normal business hours (8:00 a.m. to 5:00 p.m. local time Monday through Friday, excluding locally applicable holidays). AvePoint reserves the right, in its sole but reasonable discretion, to work remotely should that be the best way to perform the services detailed in the relevant Sales Quote. Customer agrees to provide the necessary access and credentials for AvePoint to work remotely. Limited Use only The work performed for this engagement is for the benefit of Customer only and may not be used by others besides the Customer. The services are not to be resold without express written consent from AvePoint. No audio or video taping or recording of training is permitted without express written consent of AvePoint. Requirements for Delivery: To ensure a successful and timely delivery of AvePoint services, Customer agrees to do the following: - To appoint a Customer representative (contact person) to provide necessary access to facilities and/or environments to conduct the service engagement. This person shall have appropriate access to buildings or infrastructure to ensure the timely delivery of the engagement; - To completely download and install (if applicable) all associated AvePoint software packages onto the environment prior to the engagement as necessary; - To provide a service account provided for use by the software for proper functionality. This service account(s) must be provisioned and available prior to the service engagement delivery. Please see the associated AvePoint software user guide located at for service account requirements; - To adhere to specific system, network and communication requirements across the various products. Please refer to the associated AvePoint software user guide located at for the network and communication setting requirements by AvePoint software; and - To provide further necessary support and access as reasonably necessary for the service delivery Failure by Customer to provide the aforementioned items may result in delays or changes in the service delivery. AvePoint shall not be liable for such delays or changes. AvePoint, Inc. PROPRIETARY page 1 of 5

2 Scheduling and Rescheduling Policy: Upon receipt of a signed sales quote, Customer shall be obligated to accept the agreed services to be provided at the agreed dates. AvePoint requires a minimum of ten (10) business days' advance notice for scheduling or rescheduling of the services engagement. If Customer gives a shorter or no advance notice, it shall pay any cancellation fees that AvePoint may incur on travel arrangements. Services must be consumed within one calendar year of purchase date on the relevant Sales Quote, otherwise Customer forfeits the non-consumed services without refund and without transfer of unused service amounts to other engagements. Payment Terms: AvePoint requires full payment for this service engagement prior to service delivery and thus an invoice will be issued upon acceptance of the relevant Sales Quote. The pricing for the services shall be exclusive of any expenses related to travel, lodging, meals and other reasonable expenses incurred by AvePoint. Such expenses will be billed separately once the engagement is completed and will be reasonable and necessary. All amounts are payable within thirty (30) days of Customer s receipt of the invoice. Applicable Taxes Customer agrees to pay any sales, value-added, or other similar taxes imposed by applicable law that AvePoint must pay on amounts received or due for payment from Customer under the relevant Sales Quote, except for taxes based on AvePoint s income. Customer agrees to indemnify AvePoint as to all such taxes Software Licensed Separately The services provided by AvePoint shall not include licensure to Customer of software or tools used for the provision of the services except for those expressly listed in the Sales Quote. Deliverables and Intellectual Property Customer acknowledges that there are no individual deliverables or work results to be provided as part of the services unless expressly agreed in a SOW. AvePoint exclusively retains all intellectual property rights of all software created or provided by AvePoint and of all work performed or work results created. All software products created or delivered by AvePoint for or to Customer, if any, are offered under the terms of the AvePoint Master Software License and Support Agreement only, a copy of which can be found at ( Software Agreement ). In the event Customer has executed a negotiated Software Agreement or a similar master agreement with AvePoint, such agreement shall prevail. For all other AvePoint deliverables, if any, Customer shall have the non-exclusive, non-transferable perpetual or temporary (as may be stated on the sales quote) right to worldwide use unless otherwise agreed in writing in a SOW. Independent Contractors For the purposes of this engagement, AvePoint and its employees are to be considered independent contractors and not employees of Customer. AvePoint shall be responsible for paying all AvePoint staff salaries and benefits, not Customer. Assignment Customer may not, directly or indirectly, assign or otherwise transfer any rights or obligations under this Service Addendum, to any other person or entity, unless Customer first obtains the written consent of AvePoint, except in conjunction with the sale of all or substantially all of the stock or assets of Customer. Binding Effect This Service Addendum and all of the provisions hereof shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns. AvePoint, Inc. PROPRIETARY page 2 of 5

3 Limitation on Liability a) AvePoint's liability for the Services shall be limited to the amount paid by Customer to AvePoint for the relevant SoW under which a claim is raised. b) Customer shall take adequate precautionary measures against the loss or damage of data and programs, in particular by making, at least once daily, back-up copies of all programs and data in machine-readable form. To the extent that the loss or damage of data and programs would have been avoidable by adherence to the obligation to take proper and regular data backup measures, AvePoint s liability shall be limited to the costs necessary to restore the data if data had been protected in an adequate manner by Customer. Any liability on AvePoint s part for loss and damage of data shall further be subject to the limitations of this Limitation on Liability section. The above limitations of liability of this Limitation on Liability section shall also apply in case of Customer s claim for damages against AvePoint s employees or agents. This Limitation on Liability section shall apply to all claims for damages, irrespective of their legal cause, including claims based on tort. Warranties The work shall be performed in a workman-like manner by persons having sufficient knowledge and skill to accomplish the engagement. Customer shall have the non-exclusive, non-transferable perpetual right to worldwide use of the configurations, if any. All software products created or delivered are offered under the terms of the AvePoint Master Software License and Support Agreement only, a copy of which can be found at This warranty shall supersede and is in place of any implied warranties of merchantability or fitness for a particular purpose. Remedies All remedies shall be cumulative and not alternative and in addition to all other rights and remedies available in law and in equity. Notices All notices, requests, demands, consents, authorizations, claims, and other communications (each a Notice ) hereunder must be in writing. Notices to AvePoint shall be sent to AvePoint Inc., 901 East Byrd Street, Suite 900, Richmond, VA 23219, Attn: General Counsel. Notices to Customer shall be sent to the contact person specified by the Customer. Any party may change the address to which Notices are to be delivered by giving the other parties Notice in the manner herein set forth. Offer Validity Any service offer including the pricing and the services it covers is valid until the date stated in the relevant Sales Quote ( Valid Until field). If, until this date, Customer has not signed the Sales Quote or a mutually agreed upon SOW, the offer automatically expires unless extended by AvePoint in writing. If AvePoint offers a SOW to Customer and no date is specified in the Sales Quote or no Sales Quote has been issued by AvePoint, the SOW offer will expire six (6) months after the date the SOW was presented to Customer if Customer has not signed this SOW. Waiver No party to this Service Addendum shall be deemed to have waived any of its rights, powers or remedies under this Service Addendum unless such waiver is expressly set forth in a writing signed by the waiving party. No written waiver of any provision of this Service Addendum shall be deemed to be, or shall constitute, (i) a waiver of any other provision of this Service Addendum, whether or not similar, or (ii) a continuing or subsequent waiver of the same or another provision of this Service Addendum. The failure of either party to enforce at any time any of the provisions of this Service Addendum, or the failure to require at any time performance by the other party of any of the provisions of this Service Addendum, will in no way be construed to be a present or future waiver of any such provisions, or in any way affect the validity of either party to enforce each and every such provision thereafter. AvePoint, Inc. PROPRIETARY page 3 of 5

4 Available Personnel Where applicable for the offered services, Customer shall make available personnel responsible for sign off on the completion of the services on a timely basis and when reasonably requested by AvePoint. Such personnel shall provide input, review the services being performed and the items provided by AvePoint, answer questions, provide signoff, provide physical access to the working areas required, and allow AvePoint to gather and validate information. Project Implementation Responsibility The scope and objectives of any service engagement shall be jointly managed by Customer and AvePoint to better ensure completion of the project; however, as the software implementation experts, AvePoint shall have the sole right to manage the details (who, what, where, when and how) of the project implementation, taking duly into consideration Customer s stated interests. Technical Prerequisites Customer warrants that it has acquired, installed, and configured all hardware and software necessary to allow the professional services carried out under this SoW to begin immediately upon initiation of this professional services engagement, with the intent being that AvePoint personnel do not spend any time or effort installing, configuring or implementing anything other than the AvePoint product. Customer shall further ensure that any additional technical requirements are met by the Customer s environment, including the provision of network connectivity, internet access, and voice access for local and long distance calls for use directly related to the engagement. Security If services are performed at the Customer s location, Customer shall keep the site in a physically secure condition. AvePoint agrees that its personnel shall comply with any written security guidelines provided by Customer and accepted by AvePoint. AvePoint shall not be responsible for any lost or stolen equipment except in case of willful misconduct (such as theft) by AvePoint personnel. Optional Acceptance Process No acceptance, confirmation, or other action by Customer (collectively Acceptance ) shall be required for AvePoint s completion of services, milestones, deliverables or other payment prerequisites (collectively Completion ) unless agreed in writing between the parties. If Acceptance by the Customer has been agreed between the parties as a Completion requirement, the following Acceptance process shall apply to any such Completion requirements: AvePoint shall notify Customer of any Completion. Customer shall, within three (3) business days ( Acceptance Period ), either declare acceptance of the Completion or, if the Customer believes that the agreed Completion requirements have been missed, notify AvePoint in writing of all bona fide concerns about such failure. Such notice shall clearly state all perceived deviations from the agreed Completion requirements with sufficient detail for AvePoint s review and remedy ( Dispute ). If the Acceptance Period passes without Dispute as defined above, Acceptance shall be deemed given by the Customer and the Customer shall be deemed to irrevocably have confirmed the Completion. The parties shall work jointly in good faith and without undue delay to resolve any Disputes. During a Dispute, each Party may suspend the further execution of this SOW until the Dispute is resolved to all parties satisfaction. The preceding sentence s suspension right notwithstanding, the rights accrued by a Party before such suspension (e.g. rights to send invoices and demand payment) shall not be affected and shall remain in force without suspension. Governing Law This engagement and any services thereunder shall be governed exclusively by the laws of the Commonwealth of Virginia, excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG) and excluding any conflict of law provisions. AvePoint, Inc. PROPRIETARY page 4 of 5

5 Captions The captions and headings of Sections and subsections contained in this Service Addendum are provided for convenience of reference only and shall not be considered a part hereof for purposes of interpreting this Service Addendum, and shall not limit or alter in any way the meaning or intent of this Service Addendum or any of its terms or provisions. Severability If any Section or other provision of this Service Addendum, or the application of such Section or provision, is held invalid, the remainder of this Service Addendum, and the application of such Section or provision to persons or circumstances other than those with respect to which it is held invalid, shall not in any way be affected or impaired thereby. If any provision of this Service Addendum becomes or is declared by a court of competent jurisdiction or panel of arbitrators to be illegal, unenforceable or void, this Service Addendum shall continue in full force and effect without said provision. The parties agree to negotiate in good faith a substitute valid and enforceable provision that most closely reflects the parties intent and to be bound by the mutually agreed substitute provision. AvePoint, Inc. PROPRIETARY page 5 of 5